The release or transfer of technology or source code to a foreign person in the United States. Deemed exports can be conveyed through visual inspection, oral exchange, electronic/digital exchange, made available by practice/application (e.g., training).
Items and technical data designated in the United States Munitions List (USML) of the International Traffic in Arms Regulations (ITAR). This includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in the USML. It also includes forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles. It does not include basic marketing information on function or purpose or general system descriptions.
(1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;
(2) The furnishing to foreign persons of any technical data controlled under the USML, whether in the United States or abroad; or
(3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.
Items, technology, and software that are primarily commercial in nature but have potential military applications - they appear on the Commodity Control LIst (CCL) of the Export Administration Regulations (EAR). Any dual use items not specified by a Export Control Classification Number (ECCN) in the CCL are EAR99. EAR99 items/software are less restricted but cannot be shipped/sent to certain countries and/or entities.
Embargoes and Sanctions
Embargo is a ban on trade for all transactions without a license whereas a sanction a prohibition on certain exports or activities without a license. Depending upon the sanction program restrictions may include: financial transactions, provision of services, shipment of particular items, travel, sharing of information that is not in the public domain. READ MORE
What the item, technical data, technology, software is being used for.
The person abroad that receives and ultimately uses the exported or reexported items. The end-user is not a forwarding agent or intermediary, but may be the purchaser or ultimate consignee
An individual or organization/company or government that is part of an export transaction.
(1) The actual shipment of goods/items and/or
(2) The electronic/digital transmission of goods/items/technical data/technology or release or disclosure (including verbal disclosures or visual inspections) of technology, technical data or software.
Export Control Laws (Regulations)
Federal regulations that govern the:
(1) Disclosure, shipment, use, transfer or transmission of any item, commodity, material, technical information, technology, software (and encrypted software) and
(2) Transactions or the provision of services involving prohibited countries, persons or entities based on trade sanctions and embargoes.
A person that is NOT a U.S. Person.
Note: It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions)
Foreign Person Restriction
A foreign person restriction can be:
(1) A sponsor's request for review and approval of all project participants or
(2) A sponsor's limitation on participation (not payment) by nationality or place of birth
Note: The foreign person restriction does not apply government training grants that are restricted solely for the purpose of developing U.S. resources as long as there are no publication or foreign persons access restrictions. An example of this would be a National Institute of Health NRSA Institutional Training Grant.
National Security Decision Directive 189 (NSDD189) states:
"FUNDAMENTAL RESEARCH means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community (as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons). READ MORE
Under the EAR a "conference or gathering is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations." Open conferences will not ask that attendees complete forms confirming their nationality status or sign non-disclosure agreements. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit). If you are attending a conference/workshop that is not open, a license may be required to share the information from that conference/workshop with foreign persons (even within the U.S.).
Openness in Research
State University of New York policies that prohibit the acceptance of any awards that restrict dissemination of research results or participation of foreign nationals.
Requests for justifiable exceptions to this policy, on a case-by-case basis, such as for the purpose of protecting state and national security, must be submitted to the Office of Research Compliance for submission for Chancellor or designee authority’s approval.
National Security Decision Directive 189 (NSDD189) states:
PROPRIETARY RESEARCH means research and industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons (as distinguished from fundamental research- basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community). READ MORE
A publication restriction can be:
(1) A sponsor request that goes beyond a reasonable review period (usually 30 days) for the identification of sponsor proprietary information or for the protection of intellectual property rights; or
(2) A researcher's verbal agreement with the sponsor to not publish the results of a research project; or
(3) A researcher's self imposed restriction to not make the results of their research publicly available.
Publicly Available, Public Domain and Published
Terms used in the export control regulations to define information that is available to the public.
(1) An actual shipment or transmission of export controlled items from one foreign country to another foreign country, including the sending or taking of an item to or from such countries in any manner;
(2) Releasing or otherwise transferring export controlled technology/technical data or source code to a foreign person of a country other than the foreign country where the release or transfer takes place (a deemed re-export).
A restricted party (or denied party as they are sometimes referred to) is an entity or individual that is placed on a denial list by the U.S. government or any other country’s government. A license from one, or more, of the federal agencies may be required if you plan on conducting any business or research with a restricted party, even if you are conducting Fundamental Research. More information on Restricted Parties
Used in the International Traffic in Arms Regulations (ITAR)
(1) Information, other than software as defined in § 120.40(g), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, or documentation;
(2) Classified information relating to defense articles and defense services on the U.S. Munitions List and 600-series items controlled by the Commerce Control List;
(3) Information covered by an invention secrecy order; or
(4) Software (see § 120.40(g)) directly related to defense articles.
(b) The definition in paragraph (a) of this section does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain as defined in § 120.34 or telemetry data as defined in note 3 to Category XV(f) of § 121.1 of this subchapter. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
Used in the Export Administration Regulations (EAR)
Information necessary for the “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul, or refurbishing of an item.
Technology Control Plan (TCP)
A TCP is a document that describes the security plan in situations where there is export controlled information and/or items. TCPs are created by the Office of Research Compliance, endorsed by the Vice President for Research and signed by all involved parties. READ MORE
Information from another source that is not in the public domain.
(1) Granted permanent U.S. residence, as demonstrated by the issuance of a permanent residence card, i.e., a "Green Card"; or
(2) Granted U.S. citizenship; or
(3) Granted status as a "protected person" under 8 U.S.C. 1324 b(a)(3), e.g., political refugees, political asylum holders, etc.